In legal writing, masculine language has traditionally been used to refer to people regardless of their gender. Examples include the use of masculine pronouns (he/him) and nouns such as chairman.
The practice for legislation changed in 2007. Since then, it has been government policy to write legislation in gender-neutral language.
The end of last year saw the launch of a practical guide to gender-neutral writing, which is intended to share our experience with the wider legal community outside of government.
Why adopt a gender-neutral language? The use of masculine words to cover people regardless of gender or sex is unnecessary, inaccurate and tends to reinforce historic gender stereotypes. In other words, gender-neutral writing is about clarity, inclusion and equality.
It may come as a surprise that before the mid-19th century it was relatively common to find legislation drafted in gender-neutral terms.
That changed in 1850, when Parliament passed an Act “for shortening the Language used in Acts of Parliament”. The Act said that masculine words in legislation are “deemed and taken to include females”. It enabled those writing legislation to use masculine pronouns (he/him) to refer to people whatever their gender.
By 1851 an attempt was made to repeal the 1850 Act, partly because of fears that it might be applied to legislation relating to the franchise and give women the right to vote. The then Attorney General rejected that suggestion as “really a most unaccountable supposition” (a view confirmed by the courts in 1868).
The legislative fiction that “male includes female” is repeated in the Interpretation Act 1978, which is still in force, and equivalent wording appears in many private law agreements.
Fast forward to 2019 and it’s now more than a decade since we started writing legislation in gender-neutral language. It took a bit of getting used to at first, but has since become second nature.
In recent years there has also been an increasing awareness of the benefits of gender-neutral language across the wider legal sector, including among those responsible for private law documents. Things are changing, but slowly.
Given the wider interest – and in this, the Civil Service Year of Inclusion – this seems to be a good time to be sharing our approach with lawyers outside of government. So we have produced a guide containing simple, practical advice on how to use gender-neutral language, based on our own internal guidance. It includes three basic ways to avoid gender-specific pronouns, which are illustrated with examples:
repeat the noun (for example, “a person is entitled to a benefit if the person...”);
change the pronoun (for example, by using “they” or “their” in the singular: “a person fails to comply with their duty...”);
rewrite to avoid the need for a pronoun (for example, “It is an offence for a person to...”, rather than “A person commits an offence if he...”).
The guide has been written by the Office of the Parliamentary Counsel and the Government Legal Department, and is supported by the Interlaw Diversity Forum and Global Butterflies.
We hope that it will enable others to appreciate that there really is no reason why gender-neutral drafting should not become the norm across the legal profession.